State Ex Rel. Burt v. Hutchinson

This is an original application in this court for a writ of mandamus, directed to the respondent, as secretary of state.

The relator, in his affidavit, alleges that he desires to order by petition, in accordance with the provisions of amendment 7 of the state constitution, a referendum of chapter 55, Laws of 1933, p. 290 [Rem. 1933 Sup., § 8312-1 et seq.], known as the Horse Racing act, and entitled:

"An Act relating to, providing for and authorizing and regulating thoroughbred and/or standard bred horse racing; creating the Washington horse racing commission; defining its powers and duties, and fixing compensation thereof; prescribing the manner in which race meets may be conducted; prohibiting pool selling, book making, and circulation of hand books; authorizing the pari-mutuel system; providing for issuance of licenses and fees to be charged; apportioning revenue to the old age pension fund; fixing the penalties for violation of the act; and providing that the act shall take effect immediately."

Relator further alleges that he has tendered to respondent, for filing, the papers prerequisite to the issuance of a petition, and that respondent has refused to accept them, and has refused to take such further steps as are necessary to be taken by him preliminary to the issuance of a petition for a referendum of the act.

Respondent admits those allegations contained in the affidavit, and justifies his refusal to proceed because of the following section of the act:

"Sec. 12. This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions and shall take effect immediately."

Section 7 of the act provides that it shall be unlawful to sell pools or to indulge in any wagering devices in connection with horse racing, conducted under the provisions of the act, "other than by the pari-mutuel method." [Id., § 8312-7.]

Section 9 of the act provides that five per cent of the gross receipts of the pari-mutuel machines shall be paid over to the Washington horse racing commission, and that eighty per cent of the five per cent (that is to say, four per cent of the gross revenues of the pari-mutuel machines) shall by the commission

". . . be paid to the state treasurer, and by him placed in the old age pension fund of the state treasury, which is hereby created." [Id., § 8312-9.]

The section further provides for the distribution of the fund so created to the various counties in aid of the obligation imposed upon them by chapter 29, Laws of 1933, p. 173 [Rem. 1933 Sup., § 9998-1], known as the Old Age Pensions act.

[1] The issue presented calls for the construction of that portion of the seventh amendment to the constitution which reads as follows:

"(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws asmay be necessary for the immediate preservation of the publicpeace, health or safety, support of the state government and itsexisting public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted. Six per centum, but in no case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition." (Italics ours.)

It cannot be seriously contended that the emergency clause of the Horse Racing act can be justified as "necessary for the immediate preservation of the public peace, health or safety," nor for the "support of the state government." It is contended, though, that it is for the support of an "existing public institution."

In State ex rel. Blakeslee v. Clausen, 85 Wn. 260, 274,148 P. 28, Ann. Cas. 1916B, 810, construing this portion of the amendment, Judge Chadwick said that the institutions contemplated were those

". . . existing at the time the amendment was adopted, or which, if newly created by the legislature, have not been rejected by resort to the referendum."

We fail to see how "old age pensions" could be regarded as an "existing institution" of the state at the time the emergency clause was written into the Horse Racing act. The Old Age Pensions act contains no emergency clause. If it is not subjected to a referendum, it will take effect June 8, 1933. If it is subjected to a referendum, its operation will be suspended until the general election of 1934. Furthermore, it would be confronted with the possibility of rejection by the voters, and might never become operative. In such case, if the emergency clause of the Horse Racing act is upheld, we would have the anomaly of the people having been deprived of the right of passing upon the latter by referendum when they had rejected the institution it was allegedly designed to support.

In view of these facts, it seems clear to us that the creation of a fund for "old age pensions" is a mere incident to the Horse Racing act; that the purpose of that act is to legalize horse racing and permit wagering by pari-mutuel machines. This is neither a police measure, nor an appropriation act, nor an act in support of an existing state institution.

We think the writ should be granted. It is therefore ordered that the writ issue forthwith.

MILLARD, MAIN, STEINERT, and MITCHELL, JJ., concur.